The drama about the legislative session is that legislators finally produced a budget, and that was signed by the governor, thus averting a state government shutdown.
Now that the legislative session is over, we can ask/ponder a bunch of questions regarding Legislative Immunity (scroll down to the original article for references):
- Why isn’t the DPS following Executive Order 2018-05? That order directs DPS to consider criminal traffic violations a “breach of the peace” which nullifies legislative immunity. The DPS is under the direct control of the executive. What is Gov. Hobbes doing?
- On Jan 22, 2025, while the legislature was in session, according to news reports a DPS officer pulled over a speeding car going 89mph in a posted 65mph zone. Why did DPS a priori determine that Sen Jake Hoffman (R-Queen Creek) determine that a ticket would never be filed? “DPS spokesperson Bart Graves, the agency said ‘a ticket will not be refiled’ in the case…”. The allegation would be criminal speeding (> 20mph over).
- In any event, now that the legislative session is over, there is no legislative immunity. The statute of limitations §13-107 on a criminal misdemeanor is 1 year. DPS has until Jan 22, 2026 to file the charge. Will they, and if not why not?
- Sen. Mark Finchem’s brush with law enforcement in January would be civil (alleged 48 in a 30mph zone). The time limit to file a civil traffic ticket is only two months, so that’s that. How many other or more legislator’s have traffic problems? How would we know?
- What happened with the legislation (HCR2053) that would have put tweaks to legislative immunity on the ballot for citizens to decide on? Well, it passed the House with flying colors on a bi-partisan basis. And then was summarily killed in the Senate… it didn’t even get a hearing. So it looks like it was just window dressing from the get-go.
Here’s the original article from a few months ago…
Arizona Legislator’s Immunity, Again
Every few years, we go through this — Arizona legislators are out driving around and, for whatever reason, come to the attention of law enforcement.
The reason is typically speeding, or sometimes DUI; oops, I mean alleged speeding, or alleged DUI. Sometimes it’s even stranger (alleged assault on the side of the road!?).
In the news in the recent past, not one, not two, but THREE Arizona State senators have been noted in the press as having been pulled over by three different police departments for alleged speeding in the recent past. (how many have been not noticed by the press? No one knows). What happens after the stop varies, but sometimes includes unsavory interactions with law enforcement.
- (now former) Sen. Justine Wadsack (R-Tucson), 71mph in a 35 mph
- Sen. Jake Hoffman (R-Queen Creek), 89 mph in a 65
- Sen. Mark Finchem (R-Prescott), 48 mph in a 30
Notably, none of the incidents involved driving to the capitol for some sort of dire emergency vote, which is the intention behind the immunity — although Wadsack claimed she was the victim of ‘political persecution’. Be sure and watch the bodycam video in the news story, it’s priceless “..My name is Senator Justine Wadsack and I’m racing to get home because I have four miles left on my charger before I’m about to go down” indicating she’s fabricating stories or doesn’t know how cars work.
Legislator’s Immunity
To go back to the beginning, the clause in the 1912 Arizona Constitution on the surface is pretty simple:
Privilege from arrest; civil process
Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.
The reasoning goes back to English law and the idea is the king shouldn’t be able to prevent lawmakers from getting to vote. There is a similar provision in the US Constitution.
In 2018 Republican Govenor Doug Ducey in the wake of on-going embarrassing stories issued Executive Order:
Executive Order 2018-05
Executive Policy on Legislative Immunity
Whereas, the State of Arizona continues to be plagued with fatality rates on its highways;…
[read all the whereases here]
NOW, THEREFORE, I, Douglas A. Ducey, by virtue of the authority vested in me by the Constitution and laws of the State of Arizona, do hereby direct the following:
1. Peace officers employed by the State of Arizona, including those at the Department of Public Safety, the Department of Transportation and any other agency of the State that may be in a position to enforce criminal traffic violations, shall consider any criminal violation that endangers the safety of another including but not limited to, criminal speeding, reckless driving and driving under the influence, as a “breach of the peace” under Title 4, Section 6, Part 2 of the Arizona Constitution. It is clear in some
recent cases that the peace has been breached, and we have a responsibility to enforce the law in these cases.
2. Peace officers employed by the State of Arizona shall strictly limit application of Title 4, Section 6, Part 2 of the Arizona Constitution, to circumstances where immunity applies during the legislative session
and the 15 days immediately prior to the start of the session.
3. All agencies managing Arizona Peace Officers and Standards Training Board (AZPOST) certified peace officers are encouraged to adopt this policy as it relates to Title 4, Section 6, Part 2 of the Arizona Constitution.
However, note that the EO, if followed, only includes criminal behavior. So, e.g. blowing a red light wouldn’t count, nor would “non-criminal” speeding. (criminal speeding in Arizona is defined generally as 20 or more mph over posted limits).
Executive orders, then as now, leave a lot of legal questions dangling, however, he ALSO encouraged legislators to refer to the ballot a constitutional amendment. That was 2018, in the meantime the Republican-controlled legislature hasn’t bothered to do so. Until now.
Constitution Amendment Proposed by Legislator
in the spring 2025 legislative season, Rep. Quang Nguyen (R-Prescott Valley) sponsored HCR2053. The ‘R’ after the representative’s name is hugely significant, as a ‘D’ would never go anywhere.
Privilege from arrest; civil process
Section 6. Members of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace AND ALL TRAFFIC VIOLATIONS, and they shall MEMBERS ARE not be subject to any civil process during the session of the legislature, nor or for fifteen days next before the commencement of each session.
I –as a rule– oppose legislative referrals to the ballot, as I feel like it’s the legislator’s job to make laws. However in the case of a needed change to the constitution, it has to be done this way (or by voter referral to ballot but that would be impractical for this issue).
Anyway, it passed the house WITH BIPARTISAN SUPPORT (another minor miracle).
My prediction is it will die a quiet death in the Arizona Senate; where, not coincidentally, Finchem and Hoffman sit. The bill was assigned to the Senate Public Safety Committee on 3/17/2025 but is not yet on their agenda.
Is this really needed?
In the case of criminal speeding — no, it’s clearly not needed. Because the immunity only extends to the legislative session (typically a few months), all that needs to be done is to simply hold back the charge until the session is over. Misdemeanors have a statute of limitations of 1 year. Easy Peasy. See the case of former Rep. Paul Mosely, 97mph in a 55.
This sounded like exactly what was going to, or perhaps I should say should, happen in the recent Hoffman case where it was first reported Feb 17, 2025 by the Arizona Republic that
The Arizona Department of Public Safety told The Arizona Republic that a state trooper pulled over state Sen. Jake Hoffman on U.S. Route 60 on Jan. 22 near milepost 188 after the trooper found the Queen Creek Republican driving 89 mph in a 65 mph zone.
“The Trooper recognized and verified that Mr. Hoffman is an Arizona State Senator, and currently in legislative session,” Raul Garcia, a DPS spokesperson, said. “The Trooper documented the stop in accordance with Department of Public Safety policy”.
However, inexplicably two days later on Feb 19th it was reported that
“DPS spokesperson Bart Graves, the agency said ‘a ticket will not be refiled’ in the case…
Um. Why not?
In the case of suspected DUI, however, a change is very much needed because not only is DUI extremely dangerous, allowing any (legislator or not) impaired driver to continue driving would be exceedingly horrible. Was legislator Jan Brewer (and future governor) drunk when she rear ended a minivan in 1988? The investigating officer thought so, she failed all field sobriety tests. She was never processed and was simply released.
In the case of non-criminal traffic — yes, some sort of clarity is needed. The time window to file a civil citation not involving a crash is only 2 months.
a footnote: Update on Wadsak’s lawsuit:
https://www.kvoa.com/news/local/ex-arizona-senator-sues-tucson-over-traffic-stop-claims-rights-violated/article_14763559-eec2-4f5c-aa51-6353d7eb70e9.html